Citation Nr: 1335967
Decision Date: 11/05/13 Archive Date: 11/13/13
DOCKET NO. 10-11 447 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE
Entitlement to an initial disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Illinois Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The Veteran had active service from August 1967 to September 1969.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a hearing in April 2011 before the undersigned. A copy of the transcript has been associated with the record. In February 2013, the Board remanded this case.
FINDING OF FACT
The Veteran's PTSD does not cause occupational and social impairment, with deficiencies in most areas.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 50 percent for PTSD are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486.
Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A VCAA letter was sent in October 2007 which indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letter also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess.
With regards to the claim for a higher initial rating for PTSD, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability. In Dingess the United States Court of Appeals for Veterans Claims (Court) held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008).
Here, in the NOD, the Veteran took issue with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent him an SOC that contained, in pertinent part, the criteria for establishing his entitlement to a higher rating for this disability and a discussion of the reasons and bases for not assigning a higher rating, meaning higher than 50 percent. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003).
The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked.
Here, during the hearing, the VLJ/DRO did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ also sought to specifically seek to identify any pertinent evidence not currently associated with the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his/her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).
Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined. 38 C.F.R. § 3.327(a). The claim was in fact remanded for another VA examination which was conducted in July 2013. In obtaining this additional medical evidence, the Board is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive).
The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326.
In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).
Rating
Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted.
The Veteran submitted a claim of service connection for PTSD in May 2007. In conjunction with his claim, he was afforded a VA examination in February 2008 which reflected that the Veteran had PTSD due to his confirmed combat service. The Veteran indicated that he had a history of anger problems that negatively impacted his ability to work with others and his relationships with others, including his family, He described frequent conflicts. More recently, the Veteran had developed some tentative relationships in conjunction with his Tae Kwon Do classes which also provided an outlet to control his anger. He reported that he had earned a black belt. On mental status examination, the Veteran appeared normal and had eye contact. He was alert, cooperative/friendly, and was oriented times four. His speech had normal rate, flow, and volume. His thought processes were coherent, sequential, and relevant. No thought content or mood impairment was indicated. The Veteran's affect was labile and he was tearful at times. His memory was unimpaired in three spheres and his concentration/attention was within normal limits. He exhibited a partial awareness of his problems and his impulse control was fragile. He did not have current suicidal ideation, intent, or plans. His diagnosis was PTSD and his global assessment of functioning (GAF) was 54. The examiner indicated that the Veteran was impaired in his employability due to his PTSD, but was not incapable of being employed.
In April 2008, the Veteran was again evaluated by a clinical psychologist. The Veteran was on time and properly groomed. He maintained good eye contact and was polite and cooperative. His overall mood and affect vacillated as he recalled war-related events. He exhibited periods of sadness, anger, and anxiety as he recounted experiences. During these times, his speech became louder and pressured. He was oriented times three and his memory for recent, immediate, and remote information was intact. There were no obvious sensory deficits. His intelligence appeared to be normal. His thought processes were logical and goal-directed. There was no evidence of disturbed or peculiar thinking indicative of a psychosis. He denied ever having had hallucinations or delusion which were separate from flashbacks. He admitted to past episodes of suicidal ideation , but never made an attempt. Likewise, he admitted to past homicidal ideations. He reported that he still constantly had to redirect his anger and aggressive impulses. His insight was fair and his judgment, historically, was poor. It was also noted that the Veteran had symptoms including alcohol abuse, flashbacks, disturbing thoughts, hair trigger irritability, stress, sexual concerns, martial strain, family problems, depression, anhedonia, sleep disturbance, confusion, suicidal thoughts, difficulty with concentration, and work difficulties. The psychologist indicated that the GAF score was between 50 and 58. She stated that while the Veteran had been able to maintain some meaningful relationships and to constructively redirect most physically aggressive impulses, this was no doubt an ongoing struggle for him. She reported that the Veteran had significant impairment in several areas and was nearly unemployable.
In September 2008, the Veteran was again evaluated by VA. He was dressed appropriately. His motor functioning was normal. He was oriented times three. His mood was sad and his affect was restricted to low. His speech and language was regular. His thought processes were linear. He denied having any perceptual disturbances. He had occasional thoughts of suicidal and homicidal ideation that were linked with his survival guilt, but he denied having any plan. His insight and judgment were fair and he did not have any memory problems. His GAF was 65.
The Veteran was afforded another VA examination in July 2013. The examiner basically indicated that there had not been any appreciable changes in the Veteran's PTSD and functioning since his February 2008 VA examination. The examiner noted that the Veteran continued to have moderate symptoms of PTSD but had not followed up with medications or psychotherapy since March 2011. The examiner noted that at the Veteran's most recent mental hygiene visit in March 2011, the Veteran reported that he had a good relationship with his wife and family, slept better, and did not renew his mental hygiene medications. The Veteran's GAF score was noted to have been in the range of 54-55 since February 2008. The examiner further noted that while the Veteran reported decreased work productivity at today's examination, the Veteran had not followed through with PTSD treatment that had improved his symptoms in the past. The Veteran reportedly had gained control of his anger with practicing Tae Kwon Do and socialized with others at the dojo. It was concluded that his PTSD resulted in occupational and social impairment with reduced reliability and productivity. A GAF score of 55 was rendered.
The examiner indicated further that the Veteran was working as a carpenter, but had problems working with others and with concentration. He was still married to his wife of many years, but they had experienced marital discord over the years. He also had three children with whom he had strained relationships. He no longer attended PTSD groups because he did not want to, but he did participate in Tae Kwon Do. He described having panic attacks which were periods when he felt intense anger and that he wanted to harm another, but indicated that he would never follow through. He also described periods where he would not shower for 4-5 days, but did not give a particular reason.
The Veteran testified at a Board hearing. He related that he had problems dealing with others and preferred to work alone. He stated that he had anger issues which also had negatively affected his marriage and relationship with his children. He said that he experienced startle reaction and sleep disturbance. He relieved his anger issues through martial arts and a punching bag that he had at home. He related that he had concentration and memory lapses and was depressed most of the time. However, he did have a few friends and participated regularly in his Tae Kwon Do classes.
The Veteran's family members also submitted letters indicating that historically, the Veteran had been a very violent and irrational man who was very difficult to live with. The letters were very compelling in describing a violent household because of the Veteran's mood swings and anger due to his PTSD. However, at this juncture, the Board notes that the accounts of his children are historical in nature. With regard to his spouse, she reported that the Veteran still was unable to trust anybody and was controlling. His personality appeared to change when he was around anything that reminded him of Vietnam. He had problems with memory loss and focusing. He exhibited startle reaction and his behavior was unpredictable. However, she stated that the Veteran was always happy around his grandchildren.
The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9411 are rated according to the General Rating Formula for Mental Disorders. A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130.
The Board further notes that a GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95.
GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes].
Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130.
The Veteran has been assigned a 50 percent rating for PTSD. The Veteran does not meet the criteria for a 70 percent rating. A 70 percent rating is not warranted because the Veteran's PTSD was not productive of occupational and social impairment, with deficiencies in most areas.
The Veteran has some suicidal ideation, but no intent or plan. The Veteran's speech is not intermittently illogical, obscure, or irrelevant. The Veteran is able to adequately communicate his thoughts. The Veteran describe panic attack or periods of angry feelings. However, they are not near-continuous. While the Veteran has depression, it is not to the extent that he is unable to function independently. The Veteran has irritability and anger issues as well as a history of violence, but there have not been current periods of violent behavior. There is no evidence of spatial disorientation. The Veteran does not have neglect of personal appearance and hygiene. On examination, he appeared clean and appropriately dressed. Although he stated that he would occasionally go days without showering, there was no reason provided indicating that he was regularly ignoring his hygiene or of being unable to maintain his hygiene.
The Veteran has some difficulty adapting to work and in social situations. However, difficulty in establishing and maintaining effective work and social relationships is contemplated within a 50 percent rating. He is not unable to maintain a relationship. He is still married despite past separations from his wife. He has a best friend as well as a couple of other good friends. In addition, he successfully participates in martial arts and with others involved in that activity.
Accordingly, the Board concludes that the criteria for a 70 percent rating is not met.
The Board is aware that the symptoms listed under the 70 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 70 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran's PTSD symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity. The Veteran's GAF scores predominantly indicate moderate impairment. The most recent VA examination noted that the Veteran's PTSD had not worsened and specifically opined that his current disability level was at the 50 percent level.
The Board has also carefully reviewed and considered the Veteran's statements regarding the severity of his PTSD. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms
In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 50 percent.
In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
The symptoms associated with the Veteran's PTSD disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. The Veteran has not been hospitalized and marked interference with employment is not shown as the Veteran still maintains employment. Therefore, referral for consideration of an extraschedular rating is not warranted.
ORDER
An initial rating in excess of 50 percent for PTSD is denied.
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S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs